FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT is entered into as of
May 19, 1999 ("Fourth Amendment") by and among Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx
("Sellers") and Prism Mortgage Company ("Purchaser").
W I T N E S S E T H:
WHEREAS, on July 23, 1998, Purchaser entered into that certain Purchase and
Sale Agreement dated as of July 23, 1998 (the "Original Purchase Agreement")
with Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx (together, the "Sellers"), pursuant to
which Purchaser has agreed to purchase all of the shares of Pacific Guarantee
Mortgage Corporation ("PGM");
WHEREAS, upon consummation of the transactions contemplated by the Original
Purchase Agreement, Purchaser was the sole shareholder of PGM;
WHEREAS, on April 25, 1999, Sellers and Purchaser entered into that certain
First Amendment (the "First Amendment") to the Original Purchase Agreement;
WHEREAS, on April 27, 1999, Sellers and Purchaser entered into that certain
Second Amendment (the "Second Amendment") to the Original Purchase Agreement (as
amended by such First Amendment and such Second Amendment, the Original Purchase
Agreement called the "Purchase Agreement");
WHEREAS, on May 11, 1999, Sellers and Purchaser entered into that certain
Third Amendment (the "Third Amendment") to the Original Purchase Agreement (as
amended by such First Amendment and such Second Amendment, the Original Purchase
Agreement called the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement the Sellers each received
"Additional Consideration" as defined therein;
WHEREAS, Sellers and Purchaser wish to clarify and restate the Additional
Consideration to be received by Sellers.
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the adequacy of which is hereby
acknowledged, and subject to the terms and conditions hereof, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all
capitalized terms shall have the meaning given to them in the Purchase
Agreement.
SECTION 2. AMENDMENTS TO PURCHASE AGREEMENT. The Purchase Agreement is
hereby amended as set forth below.
2.1 Section 10.5 shall be deleted in its entirety and the following
inserted in lieu thereof:
"Purchaser agrees to pay taxes or make distributions to pay taxes in
the amount of $647,987 arising from Seller's ownership of the shares
of PGM from January 1, 1998 through August 31, 1998. Seller
acknowledges receipt of payments or distributions from Purchaser to
reimburse them for income taxes related to income generated by Seller
from January 1, 1998 through August 31,
1998 in the amount of $1,188,314.
2.2 Section 3.2(i), as amended by the Third Amendment, shall be revised as
follows:
The number "$6,196,737" in the first paragraph of Section 3.2(i) shall
be deleted and replaced with the number "$5,656,410".
SECTION 3. ADDITIONAL TAXES. Notwithstanding Seller's representations
and warranties relating to taxes pursuant to Section 4.12 of the Original
Purchase Agreement, Purchaser agrees to pay the additional incremental income
taxes resulting from changes to the taxable income of PGM required to be
reported by Sellers for the period January 1, 1998 through August 31, 1998, to
the extent such adjustments are not related to pre-acquisition transactions
initiated by the Sellers.
SECTION 4. FULL FORCE AND EFFECT. Except as expressly amended hereby, the
Purchase Agreement shall remain in full force and effect and, as so amended, is
hereby acknowledged, confirmed and ratified in all respects.
SECTION 5. CONSTRUCTION AND INTERPRETATION OF THIS FOURTH AMENDMENT. The
terms and provisions of this Amendment shall be governed by the provisions,
including without limitation the construction, arbitration and choice of law
provisions, set forth in Section 12 of the Purchase Agreement, which terms are
expressly incorporated herein by this reference thereto.
SECTION 6. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
day and year specified above.
PURCHASER: SELLERS:
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PRISM MORTGAGE COMPANY,
an Illinois corporation ________________________
Xxxxxxx Xxxxxxx
By:____________________________
Its:_____________________ ________________________
Xxxxx Xxxxxxx
CONSENT OF SPOUSE
I am the spouse of the Seller, Xxxxx Xxxxxxx, and hereby join in the
execution of this Fourth Amendment to evidence my knowledge of its existence and
acknowledgment that I understand and agree to the provisions of this Fourth
Amendment and that I desire to bind to the performance of this Fourth Amendment
my interest, if any, in any shares of any securities of Prism in which the
Seller may receive an interest in connection with the transactions.
Accordingly, I agree that my community property interest, if any, in such
securities of Purchaser in which the Seller may receive any interest in
connection with the transactions shall be bound by this Fourth Amendment and
that such consent is binding upon my executors, administrators, heirs and
assigns. I acknowledge that the foregoing is not intended to, and shall not be
construed as, conferring or creating in me any interest in any securities of
Prism which the Seller may receive in connection with the transactions. I
hereby acknowledge that I have been afforded the opportunity to have this Fourth
Amendment and this Consent reviewed by a counsel of my own choosing.
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--------------------------------- Xxxxxx Xxxxxx Xxxxxxx
CONSENT OF SPOUSE
I am the spouse of the Seller, Xxxxxxx Xxxxxxx, and hereby join in the
execution of this Fourth Amendment to evidence my knowledge of its existence and
acknowledgment that I understand and agree to the provisions of this Fourth
Amendment and that I desire to bind to the performance of this Fourth Amendment
my interest, if any, in any shares of any securities of Prism in which the
Seller may receive an interest in connection with the transactions.
Accordingly, I agree that my community property interest, if any, in such
securities of Purchaser in which the Seller may receive any interest in
connection with the transactions shall be bound by this Fourth Amendment and
that such consent is binding upon my executors, administrators, heirs and
assigns. I acknowledge that the foregoing is not intended to, and shall not be
construed as, conferring or creating in me any interest in any securities of
Prism which the Seller may receive in connection with the transactions. I
hereby acknowledge that I have been afforded the opportunity to have this Fourth
Amendment and this Consent reviewed by a counsel of my own choosing.
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